CAAF will hear the first oral argument of the September 2014 Term in the Marine Corps case of United States v. Vargas, No. 14-6009/MC (CAAFlog case page), on Tuesday, September 9, 2014. The court will review the decision of the Navy-Marine Corps CCA that granted a Government interlocutory appeal and vacated a military judge’s rulings that denied the Prosecution an overnight recess during trial and rested its case.

Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon the Government counsel was unprepared to present any more evidence until the second day.

So Government counsel requested a continuance until the following morning. The Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917. The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.

That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.

A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:

By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.

United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here) (link to unpub. op.). The court then analyzed the circumstances (giving surprisingly little deference to the trial judge) and concluded:

In light of the circumstances of this case, we conclude that the military judge’s action in denying the Government a brief recess during trial and then sua sponte, over objection, resting the Government’s case was a clear abuse of discretion.

Slip op. at 10. In my analysis of the CCA’s opinion I discussed two potential issues: whether the CCA had jurisdiction and whether the court gave the required degree of deference to the trial judge’s rulings. A few months later Appellant sought review by CAAF, identifying these same two issues, and in July the court granted review of the jurisdictional question:

Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

CAAF did not order briefs in addition to the materials submitted in connection with Appellant’s petition for review (consisting of a brief by Appellant, a response from the Government, and a reply brief by Appellant). Appellant’s brief makes a three-pronged argument against allowing a Government appeal in this case focusing on precedent, the Government counsel’s email disclaiming an intent to appeal, and the nature of the rulings at issue. The Government’s response attempts to dissect the precedent and emphasize what it sees as the practical effect of the judge’s rulings, and it boldly asserts that the United States need not preserve issues for appeal and that it has an unqualified right to appeal regardless of the assertions made by its trial counsel. Appellant’s reply brief highlights “two dubious assertions” in the Government’s response. Reply Br. at 2.

The precedent is the Army case of United States v. Browers, 20 M.J. 356 (C.M.A. 1985). In Browers the CMA held that “the Government was not entitled to appeal from [the trial judge’s] denial of a continuance.” 20 M.J. at 359. The facts of Bowers bear many similarities to the facts Vargas. In Bowers two Government witnesses were unavailable at trial and the Government requested a 16-day continuance. The judge denied the continuance and rejected a Government request for delay to appeal, forcing Government counsel to continue. But the Government had little other evidence and the judge acquitted the appellant. The Government then appealed the denial of the continuance and the Amy Court of Military Review (the predecessor to the CCA) reversed, finding that the denial of a continuance was appealable, that the continuance should have been granted, and that the proceedings after the Government requested delay – including the acquittal – were a nullity.

But the CMA reversed the Army court. Analyzing Article 62, the CMA concluded that:

[T]he issue is whether denial of a continuance requested so that the Government may produce a material witness constitutes the exclusion of evidence. Most lawyers think of exclusion of evidence as a ruling made at or before trial that certain testimony, documentary evidence, or real evidence is inadmissible. In short, “excludes” usually is a term of art; and we see no reason to believe that Congress had any different intention in drafting Article 62(a)(1).

20 M.J. at 360 (emphasis in original). A concurring opinion from Judge Cox added:

The Government should use Article 62 , Uniform Code of Military Justice, 10 U.S.C. § 862 , sparingly; i. e., only when reasonable men do not differ that the pretrial ruling either ends the proceedings prior to jeopardy having attached, or suppresses or excludes evidence that is necessary to prove an essential element of the offense. A mere weakening of the Government’s case is not sufficient.

20 M.J. at 360 (Cox, J. concurring) (emphasis added). It’s hard to see how Browers isn’t binding precedent that compels reversal of the NMCCA’s decision in Vargas, but the Government tries to dissect Browers with CAAF’s decision in United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). In that iteration of the long-running Wuterich case (part of our #1 story of 2008 and a case that ended with a plea deal and an administrative discharge), CAAF considered numerous issues including whether Article 62 authorizes the appeal of a military judge’s ruling quashing a subpoena. The court concluded:

In the present case, the military judge ruled that the evidence requested in the subpoena was cumulative with the evidence otherwise available to the prosecution. See supra Part I.C. In so doing, he focused specifically on the pool of potential evidence that would be admissible at the court-martial. As such, his decision to quash the subpoena was appealable under Article 62, UCMJ, because it had a direct effect on whether the outtakes would be excluded from consideration at the court-martial.

67 M.J. at 70. But the court also noted that:

In Browers, Chief Judge Everett concluded that the order was not appealable because it involved the question of trial scheduling, not the exclusion of evidence.

67 M.J. at 73. And so the Government’s response in Vargas focuses on the ways that the judge’s ruling denying the overnight continuance excluded evidence, asserting that “the critical distinction between appealable and non-appealable orders rests on the difference between case management orders entered to prevent delay, and orders limiting the pool of potential evidence presented at trial.” Gov’t Br. at 13. Characterizing the order in this case as one limiting the evidence available for presentation, and not as one managing the trial to prevent delay, is crucial to the Government’s argument.

But asserting that the military judge’s ruling in this case limited the pool of potential evidence requires some factual interpretation, which the Government’s response provides in this passage:

The Military Judge’s denial of the Government’s overnight continuance request and concomitant order to rest the Government’s case cannot reasonably be considered in isolation. Rather, they occurred simultaneously, and in complete disregard of the Trial Counsel’s invocation of R.C.M. 908(b). (R. 191-92.) They represent the brash, arbitrary decisions of the Military Judge, whose suggestion that Trial Counsel was “not prepared for trial as they should be,” (R. 191), is clearly unsupported by the Record. Vargas, 2014 CCA LEXIS 121 at *15. On the contrary, as the lower court noted, the trial was progressing at a much faster pace than anticipated. Id. Trial Counsel had even disclosed to Defense Counsel, without objection, his plan to present four witnesses the first day and three the second. Appellate Ex. XLIII at 1.

As the lower court noted, “[n]ot only were the last three witnesses available to testify the next day, but they were intentionally scheduled by the Government on that day due to schedule conflicts and travel considerations.” Vargas, 2014 CCA LEXIS 121 at *17. Had the Military Judge granted the recess, the witnesses would have testified; by refusing the recess and sua sponte resting the Government’s case, the Military Judge affirmatively closed the door on the presentation of their testimony.

Taken together, these two actions by the Military Judge therefore clearly limited the potential pool of evidence the prosecution planned to present.

Gov’t Br. at 15-16. One potential problem with this argument is the Government’s characterization of the military judge’s action as “sua sponte resting the Government case,” Gov’t Br. at 16. I think it debatable that this is actually what happened. The CCA’s opinion included this excerpt from the record:

MJ: Government, do you have any additional evidence to present?

TC: Ma’am, we do not have any additional evidence at this time — um, we do not have any additional evidence at this time.

MJ: Okay. Are you resting then?

TC: No, ma’am.

MJ: You may present any additional evidence or you may rest.

TC: Ma’am, again the government intends to offer additional evidence. However, we do not have that on us at this time. We do not intend to rest our case at this time, ma’am.

MJ: Okay. Your case is rested if you have no additional evidence to present at this time. I have already denied any continuance in this case. With that, Defense?

CC: Defense rests.

Vargas, slip op. at 3-4 (emphasis added). The Government had the opportunity to present any evidence it had at the time of trial. The judge just wouldn’t permit any delay. And I think it notable that the granted issue does not echo the Government’s characterization of the resting of the Government’s case as sua sponte.

Appellant’s brief also focuses on the actions of the Government’s trial counsel:

At 1759 on October 22, 2013, trial counsel sent an email to the military judge with a copy to the defense which stated, “The government does not intend to file an Article 62 appeal regarding the military judge’s denial of the government continuance request.” (AE XLIII, at 8.)

App. Br. at 10. Appellant asserts that by this email, “the Government explicitly abandoned its right to appeal the military judge’s denial of its continuance request under Article 62, UCMJ.” App. Br. at 19. This is a classic waiver argument and the Government routinely argues waiver as a basis to deny relief to individual appellants. But the Government seems to think that the same rules don’t apply to it:

Contrary to Appellant’s argument, (Appellant’s Pet. at 19), the United States did not waive the opportunity to contest the Military Judge’s improper denial of its continuance request. Research reveals no cases – and Appellee cites none – supporting the proposition that the United States must “preserve” issues for appeal, or that it may waive interlocutory appeal where the jurisdictional thresholds are otherwise met.

Gov’t Br. at 16-17. CAAF will undoubtedly seek clarification of this assertion during the oral argument in this case, as last term’s oral arguments were replete with instances where appellate defense counsel were questioned about trial-stage waiver of appellate issues. The Government’s response asserts that the Article 62 right of appeal is “unqualified” and unaffected by the trial counsel’s email. Gov’t Br. at 17. It will be interesting to see if this response satisfies the court.

Finally, Appellant’s brief emphasizes a key point for Appellant’s argument:

[T]he reason these three witnesses did not testify at trial was not because the military judge ruled that the Government had rested its case. Rather, they did not testify as a direct result of the Government failing to ensure that the witnesses were present and prepared to testify when the time came to call them. There is nothing in the record to indicate that, had they been present, these witnesses would have been excluded from testifying.

App. Br. at 21. The Government’s response highlights the apparent unreasonableness of the judge’s ruling, noting that “the last three witnesses . . . were intentionally scheduled by the Government on [the second] day due to schedule conflicts and travel considerations.” Gov’t Br. at 15-16. A trial involves lots of moving pieces and the Government’s deliberate scheduling seems eminently reasonable and entirely appropriate. Except for two problems highlighted in Appellant’s reply brief:

First, the Government asserts that “had the military judge granted the recess, the witnesses would have testified . . . .” (Brief on Behalf of Appellee at 16.) This is not accurate. Even if the Government’s continuance request had been granted, Special Agent (SA) Fogel still would not have testified.

Contrary to the Government’s assertion that SA Fogel and Sergeant Baschnagel “both were involved in interviewing Appellant on the night of September 1, 2012[]” (Brief of Behalf of Appellee at 3), SA Fogel was not even in the room during Appellant’s interrogation and had no admissible testimony to present. (Government’s Written Notice of Appeal IAW R.C.M. 908 of October 23, 2013 at 2 (“Agent Baschnagel is one of two agents who interviewed the accused immediately after the incident. The other, Special Agent Carlos Castro, NCIS, is presently deployed.”).) In other words, the military judge’s rulings did not exclude any evidence or testimony from SA Fogel.

Reply Br. at 2. Put differently, the Government’s careful planning was focused on the wrong person. Second,

The Government also incredibly asserts that “[t]here is no suggestion that the case ‘languished’ . . . .” (Brief on Behalf of Appellee at 16.) In making this argument, the Government attempts to focus on the delay between its latest continuance request during trial and the following day when it anticipated its witnesses would be present. This argument must fail.

The orders by the military judge were to prevent any further delay, even if only for one day, in a case that had severely languished from its inception. The record is replete with evidence that this case was over eight months old (three longer than Browers) and that six continuances had already been granted (four more than Browers), five of which were attributable to the Government’s actions in the case.

Reply Br. at 3 (emphasis added). In other words, the Government had plenty of time and chances to get its case – and the right witnesses – ready for trial.

CAAF’s focus on the jurisdictional issue (and it’s rejection of Appellant’s other issue – that the CCA failed to give the judge’s finding adequate deference) may mean that the court does not want to wade too deep into the facts of this case. However, the granted issue could be read broadly, to include the standard of review applied by the CCA, and the oral argument might include discussion of additional facts in this messy case. Either way, this argument will likely be an exciting start to the 2014 term.

Case Links:
NMCCA opinion
Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Vargas, No. 14-6009/MC”

  1. stewie says:

    That last bit is compelling to me. I’m sensitive to the idea that it’s not always easy to plan witness travel or anticipate how a trial is going to go. And I think a judge should be at least a little bit sensitive to that so long as we are talking nothing more than going an extra day, or ending at 1400 instead of 1800.
    However, if there were extensive delays by the government, and the MJ had had enough, then that does change things in my mind, as the government should get some leeway, but not infinite leeway.

  2. AF JAG says:

    As much as I would prefer for the Court to focus on the arbitrariness of the trial judge’s actions in resting the government’s case (particularly when the case was docketed for 3 days; they were on day 1; and the witnesses were always scheduled to testify on day 2; and there was no “prejudice” to defense counsel from allowing the witnesses to testify as originally scheduled) I agree with Mr. Spilman that it looks like this case will center on jurisdiction.
    In that regard, while Browers favors the defense argument that there is no Article 62 jurisdiction to appeal a denial of a continuance, it does not rule out Article 62 jurisdiction for resting the government’s case over the Trial Counsel’s objection.  While the trial judge in Browers did indeed effectively “close the government’s case” by entering a finding of not guilty after denying the continuance, the narrow issue presented on appeal in Brower was only to the continuance itself.  
    That’s where the real “functional exclusion”/ “direct effect on potential pool of evidence” argument has legs.  Consider this hypo:  the government has 10 witnesses ready to go, on site at court and after 5 witnesses the military judge says “you’re done government; no more witnesses; I’m closing your case.”  Certainly under those circumstances, the military judge is effectively excluding the testimony of those witnesses.  Then, the jurisdictional issue would be if the testimony of those witnesses qualified under Article 62(1)(B) as “substantial proof of a fact material in the proceeding.”
    So turning back to this case, if the government shifts focus hard and fast to the military judge’s involuntary closure of the government’s case, over governmental objection (vice the “continuance issue”) I think the government’s Wutterich analogy (see 67 M.J. 63, 70 (C.A.A.F. 2008)) makes sense and CAAF should find jurisdiction.
    Switching gears to the “waiver” issue—there is no “waiver” mentioned in Article 62 or RCM 908.  Rather, the only requirement for the government to “preserve” an issue for interlocutory appeal is to give the military judge notice of the government’s intent to appeal within 72 hours of the ruling in question.  Article 62(a)(2).  The government citation to United States v. Neal in their brief says it all:  “The statute provides the prosecution with an unqualified seventy-two hour period in which to file a notice of appeal.”  68 M.J. 289, 295 (C.A.A.F. 2010)(emphasis added).  Unless CAAF is planning on over-ruling its recent precedent and judicially constructing some sort of collateral estoppel of Article 62 appeals where none exists in statute, no “waiver” exists so long as counsel abide by the notice and timing requirements of Article 62.
     Even presuming that “waiver” could apply to Article 62 where the government ultimately gave timely notice of the intent to appeal to the trial court, such “waiver” should be considered ultra vires and therefore invalid where it did not conform to applicable service regulations.  That is, the 72 hour limit on making the “decision to appeal” discussed in RCM 908(b)(2) does not provide a “waiver rule” that a preliminary representation by trial counsel is binding on the government.  This seems particularly apt where each of the services have established regulations requiring consultation (usually with the corresponding appellate government division) before deciding to initiate an Article 62 appeal.  For example, in the Air Force, the provision is AFI 51-201, Administration of Military Justice (6 June 2013), para. 8.16.1:  “Trial counsel may file a notice of appeal by the United States under Article 62, UCMJ, and RCM 908 only after consultation with the Government Trial and Appellate Counsel Division (AFLOA/JAJG).”  So absent a showing that the Navy Appellate Government Division “signed off” on any “the government does not intend to appeal” e-mail, it’s difficult to see how any “waiver” could pertain.  

  3. Zachary D Spilman says:

    I think you’re making a circular argument, AF JAG, when you try to separate the resting of the Government’s case from the denial of the Government’s request for a continuance.

    In Vargas the judge did not, as your hypothetical discussed, say “you’re done government; no more witnesses; I’m closing your case.” Rather, the judge invited the Government to call its next witness, and when the Government responded that it had no more witnesses to call that day (having asked for a continuance until the next day), the judge rested the Government’s case and opened the Defense case. The connection between these events is enormous when it comes to this jurisdictional issue, as the Government might not have had the next witness until weeks, months, or years later.

    The fact of Vargas that the Government would have had a witness to present the very next day is inconsequential to the jurisdictional issue (though I think it matters a great deal to the analysis of whether the judge abused her discretion in denying the recess – a question not reached if there is no jurisdiction). The Government can no more appeal the denial of its request for an overnight recess than it can appeal the denial of its request for a decade-long recess (and before you scoff at that notion, consider the length of time involved in the commissions cases).

    As for your waiver argument, you write:

    That is, the 72 hour limit on making the “decision to appeal” discussed in RCM 908(b)(2) does not provide a “waiver rule” that a preliminary representation by trial counsel is binding on the government.

    To be blunt, I think this is an incredibly naïve take. This Government counsel didn’t make a mere preliminary representation; it was a deliberate tactical choice (and an obvious one at that) to seek reconsideration the next day when the witnesses were available, presumably with the expectation that the military judge would calm down and let the Government’s case continue as scheduled. And it was likely made after consultation with supervisory counsel (I only say likely because it occurred in October 2013, which was pre-Hornback).

    You also suggest, AF JAG, that the Defense should have to prove that the Government counsel didn’t consult with supervisory counsel or appellate division, writing:

    So absent a showing that the Navy Appellate Government Division “signed off” on any “the government does not intend to appeal” e-mail, it’s difficult to see how any “waiver” could pertain.

    Well, three issues there. First, the Defense would never have this information (litigating its discovery is impossible, since the issue isn’t ripe until the appeal and the appeal stops the trial). Second, a party that wants to avoid waiver generally bears the burden to prove that waiver shouldn’t apply. And finally, the Government is normally prohibited from advancing a different argument on appeal than the one made at trial (and there’s no reason to change that rule in this case).

    All that said, I will join you in your preference for CAAF to focus on the arbitrariness of the judge’s ruling. A judge who will do this to the Government will do something equally confounding to the Defense. But as I wrote at the end of my preview, it looks like CAAF does not want to wade too deep into the facts of this case. In case you didn’t catch it, the word facts in that sentence is a euphemism.

  4. anonymous DC says:

    None of the decisions were made that day without the input of supervisory, that much was obvious to anyone sitting in the court room watching the STC (maybe acting RTC) directing the show. The gamesmanship of that supervisory counsel, now MJ, is documented in other court records and complaints.